Book Review: The Scapegoat, About the Expulsion of Michael Rasmussen from the Tour De France 2007 and beyond, Verner Møller , Akaprint, Aarhus, 2011.
The self published English translation of Møller 's book on Michael Rasmussen  (Møller, Verner. 2010a. Løgn over løgn – om Michael Rasmussens Tour de France exit, Copenhagen, People’s Press) is an important and necessary contribution to our understanding of the manner in which sport is administered in contemporary times. It also provides yet another example of the manner in which law is increasingly played out in what Guy Debord dubbed the Society of the Spectacle. Rasmussen's story deserved to be told and there is probably no one who could have gained his trust and done the job better than Verner Møller .
In saying this and in the interests of disclosure I must say that I count Møller as a friend and a colleague and that through him and other former teammates of Rasmussen's I have come to know and like the Danish climber. Possibly also it is because of this I can also say that in reading and commenting on the drafts of this book Møller and I probably came close to blows! Only in the academic sense of course.
It is probably no secret that I find the liberal analysis of the current state of sport and sports law deficient in so far as it tends to hark back to a state of affairs, which if they ever existed at all, clearly don't exist today. But then again one of the things that makes Scandinavia such an interesting place is its tenacious belief in a classical liberal and even a social democratic world view. It is in many senses an island within a neoliberal globe in this respect. Although, sometimes reading the work of my Scandinavian colleagues, I feel the frustration of Sarah Lund in the Danish police show, The Killing, or that of Wallander - the restraints of the kid gloves dressed up as human rights with which they are compelled to treat the bad guys. None of this exists, in contrast, to the more pragmatic and gritty approach of the crew in the French policial Spiral, and its heroine Laure Berthaud, who get to the core of the issue as they bang the heads of the bad guys against the wall.
But back to sport, and or the law and Møller's book. I am in no doubt that what happened to Michael Rasmussen was a sporting crime of monumental proportions and that in perpetrating this crime the rule book was conveniently thrown out the window. In our report “I Wish I was Twenty One Now - Beyond Doping in the Australian Peloton” (Hardie et al 2010) we included one quote in respect of Rasmussen. The question and the response of the interviewed professional cyclist put into context the gravity of the events that took place in Pau in July 2007:
Q: Are you ever amazed that Rasmussen is still alive? I actually think sometimes, I really seriously am amazed that he hasn’t committed suicide.
A: Yeah, that was I think an oversight on Rabobank’s point of view, I don’t know. I was there and I’m part of that team and I don’t know enough about that. But I think it was an oversight on them when they kicked him out of the tour, to leave him alone that night. They put him in a hotel room 100km up the road or something, with that, driven there by a PR lady or something. Really, somebody should have been on suicide watch.
Q: Well, I’m still amazed about it.
A: Taking the Holy Grail away from somebody.
As Møller painstakingly documents the leader, and at that point probable winner of the race, was 'retired' by his team (and his life destroyed) for no better reason than to quell a media storm played out in Debord's Spectacle. Møller's documentation shows us that Rasmussen was not in breach of any rules that justified his exclusion from the race or that warranted a wider ban. If he had been would not the UCI or the race organisers themselves excluded him? To me Rasmussen seems to have been the victim of a (to be trite) 'perfect storm' of circumstance – amongst other things the UCI's desire to appear to be winning the war on doping and the cycling media's complicity in this (although to describe them as media in the classical sense might be a bit of a stretch – they are after all for most parts a marketing machine for the industry as such). Along with this there is in Rasmussen's case always the sneaking suspicion that other vested interests had a role to play in stirring the pot. Interests which thanks to that other banished cycling figure, Floyd Landis, might just now be starting to come unstuck.
What still troubles me with this book is essentially what troubles me with much sports scholarship – its almost naïve analysis of the manner in which the law or better governance operates and some of the assumptions which support that analysis. In order to illustrate the point I will refer to two assumptions which I feel hinder our analysis of sports law and and administration and underpin the way Møller and others see the world.
Firstly, is the criticism levelled by Møller and others that anti-doping law is not consistent with traditional notions of the rule of law and the separation of powers, particularly the separation between judicial and executive powers. This in fact appears to be a point that Armstrong is seeking to make in his defence to USADA's accusations against him. It is this premise that, to a large part, underlies Møller’s analysis and is made explicit in the quoting of the United States journalist Hiltzik:
“What has evolved to protect competitive purity since then [the establishment of WADA] is a closed, quasi-judicial system without American-style checks and balances. Anti-doping authorities act as prosecutors, judge and jury, enforcing rules that they have written, punishing violations based on sometimes questionable scientific tests that they develop and certify themselves, while barring virtually all outside appeals and challenges” (Møller 2011:281).
What this perspective fails to consider is a complex matter, worthy of an essay or book in itself, but in short it overlooks that the rule of law is not something with an essence, but that it changes and has changed over time and in different circumstances. Our rule of law today is not that of Dicey's a hundred or so years ago. Furthermore, it overlooks the fact that anti-doping law is a part of a global system of administrative law. Administrative law has traditionally and by its very nature operated within the executive branch of government, subject only to the supervisory check of a Court for breaches of fundamental aspects of the law, such as natural justice or ultra vires. It was this in part that Dicey so vehemently objected to in his analysis of the French system. In the case of the contemporary global system, whether we like it or not, the Swiss Courts are said to provide that check. Furthermore, the analysis overlooks the fact that there is an increasing movement whereby administrative and regulatory procedures take the place of the classical liberal conception of law and the judicial system. Sport is not an island in this respect and is time for sport's scholarship to recognise this.
Secondly, I am uncomfortable with what I call the 'sporting rule approach', that is the argument that anti-doping law is the same as, or similar to, any other sporting rule (for example off side in football) and is thus deserving of only a sporting penalty. Anti-doping is in reality more than a sporting rule – in many cases the act of doping has become (whether we agree or not) a criminal offence with penalties well beyond that of the bans contained in the World Anti-Doping Code. But from the viewpoint of a large body of legal scholarship there is also a more fundamental objection to this assumption. Desautels-Stein (2012), following Rawls and others, illustrates this clearly. On this analysis there are two types of rules: background and foreground. Without background rules a legal concept (such as a sport) does not exist. The background rules are constitutive of the sport – they are the rules of the game and constitute the game. There is no such thing as golf without the Royal and Ancient's (background) Rules of Golf. Foreground rules are different in their nature, they are regulatory and not constitutive. Without the foreground rules of anti-doping golf would still exist as a concept - the lack of anti-doping rules does not mean golf fades into nothingness as a concept. The role of foreground rules is take as a given some prior activity, such as the market, golf or road cycling, and seek to control or regulate that activity in some way. I was reminded recently of this on a visit to East Timor. Traffic rules may seek to regulate driving but they do not create or constitute the activity of driving. The point is that anti-doping rules are not mere sporting rules, they are not constitutive of the sport in question, but seek to regulate a pre-existing activity, in this case an activity known as sport in its various forms.
With these reservations I can only commend Møller's book to sports fans and to sports scholars. It is an important contribution to the field and deserves much wider recognition, as does the story of Michael Rasmussen. It reminds us of one fundamental proposition put forward by Møller and which cannot be disputed – that those that make, implement and administer the rules themselves should follow those same rules. It is a principle that even the Court of Arbitration in Sport upheld as far back as 1994:
“The fight against doping is arduous, and it may require strict rules. But the rule-makers and the rule-appliers must begin by being strict with themselves. Regulations that may affect the careers of dedicated athletes must be predictable. They must emanate from duly authorized bodies. They must be adopted in constitutionally proper ways. They should not be the product of an obscure process of accretion. Athletes and officials should not be confronted with a thicket of mutually qualifying or even contradictory rules that can be understood only on the basis of the de facto practice over the course of many years of a small group of insiders.” (CAS 1994)
Sadly, as Møller painstakingly documents, but not unsurprisingly, this did not happen in Rasmussen’s case.
CAS 1994, USA Shooting & Quigley v UIT (CAS 94/129), see also Tchachina v the International Gymnastics Federation (CAS 2002/A/385) UCI v Landaluze and RFEC (CAS 2006/A/1119) Kaisa Varis v. International Biathlon Union (CAS 2008/A/1607)
Debord, G., (1995) The Society of the Spectacle, Zone Books, New York.
Desautels-Stein, J., (2012) The Market as a Legal Concept, Buffalo Law Review 2012 Vol. 60 387.
Dicey, A.V., (1920) Introduction to the study of the Law of the Constitution, MacMillan and Co Limited, London.
Hardie, M., et al (2010) “I Wish I was Twenty One Now - Beyond Doping in the Australian Peloton”, Deakin University, Geelong, http://www.newcyclingpathway.com/wp-content/uploads/2010/09/21-NOW-FINAL-.pdf